Evidence in Fitchburg drug case was tested by rogue chemist

The alleged botching of drug cases by former state chemist Annie Dookhan might lead to the release on a man convicted in a marijuana trafficking case in Worcester County.

The case stemmed from an October 2007 bust in which Fitchburg police and the U.S. Drug Enforcement Administration began tracking a package from outside the area. Authorities discovered 300 pounds of pot and arrested three men.

The lawyer for one of the men convicted in the case was told late last week that the evidence in the case was suspect be cause of the lab scandal. Holden-based lawyer William S. Smith filed a motion today in Worcester Superior Court asking that his client's sentence be stayed and that his client, Matti E. Thomasian, be released on personal recognizance.

“Then the question is whether he can be retried,” Mr. Smith said. The lawyer said he can't see a retrial occurring.

Mr. Smith said it appears his client will go before one of the special sessions created by the state Trial Court on Oct. 22. The date is tentative. Mr. Thomasian is still in prison.

The drugs seized in the case have been destroyed, leaving nothing for authorities to retest. Even if the drugs were still available for testing, Ms. Dookhan's alleged actions would put the validity of the sample into question, Mr. Smith said.

Ms. Dookhan, 34, of Franklin is accused of falsifying drug test results and tampering with samples she was supposed to test. The chemist, who worked at Hinton State Lab in Jamaica Plain for nine years, reportedly tested more than 60,000 drug samples involving 34,000 defendants.

The lab has been shut down.

Ms. Dookhan told state police investigators she used “dry labbing” in analyzing samples. That means she identified some drugs by sight, rather than by chemical testing. She also told investigators that she purposely contaminated samples.

Even if the drugs in this case were still around, Ms. Dookhan's alleged statement to investigators about contaminating drugs leaves any drug involving Ms. Dookhan in doubt.

“It makes the validity of the certification almost certainly invalid,” Mr. Smith said. “The real question is who, if anybody, can be retried. I would suggest no.”

Ms. Dookhan reportedly had supervisory roles at the lab as well, Mr. Smith said. That adds to the questions about samples tested at the lab, the lawyer said.

On Dec. 2, 2010, a Worcester Superior Court judge sentenced Mr. Thomasian to 3 years to 3 years and a day in prison for marijuana trafficking.

While not discussing the particular defendant, District Attorney Joseph D. Early Jr. said one of the men involved in the allegedly tainted case was scheduled to be released in December 2013.

Mr. Thomasian, now 37, listed a Fitchburg address when he was arrested. He was sentenced to an additional 6 months in jail on a charge of conspiracy to violate drug laws. The sentence was to be served concurrently.

The October 2007 pot bust came after Fitchburg police and the DEA began tracking a package from outside the area. A shipping company was alerted to a suspicious package.

Eventually, the DEA, state police and officials from the North Worcester County Drug Task Force arrested three men at Pace Energy Service Station in Fitchburg.

Defense lawyer Vincent F. Ricciardi Jr., who represented one of the three men, Raul Barajas, said he was notified over a week ago that one of his cases might involve Ms. Dookhan. He was formally notified this week that that was indeed the case.

Mr. Barajas, now, 31, listed a Fitchburg address at the time of his April 2010 sentencing in Worcester Superior Court. He was charged with marijuana trafficking.

Mr. Barajas pleaded guilty to a lesser charge, marijuana possession with intent to distribute, and was sentenced to 1 year in jail in prison. He was given credit for time served and there was an immigration detainer in the case.

“Locating my client is probably going to be the hardest part of my job,” Mr. Ricciardi said. Mr. Barajas client was originally from Mexico, but Mr. Ricciardi does not know if his client was deported.

In an interview this week, Mr. Early said there was a stipulation in the marijuana case where the defendants agreed to the kind of drugs they were peddling. It is unclear if those admissions were made based on certifications provided by Ms. Dookhan.

“There was some additional information in the grand jury minutes that may have an effect on it (the case) as well,” Mr. Ricciardi said. “There was testimony that not all of it (the drugs) was weighed and tested.”

The testimony came from either a state police trooper or a DEA agent, not Ms. Dookhan, he said.

For now, Mr. Ricciardi is discussing the case with the district attorney's office and will consider what path to take.

The third man arrested in the pot bust, Edgar E. Espinoza, now 30, is still wanted on a default warrant issued by Worcester Superior Court. He listed a Leominster address at the time of his arrest and has never been in Superior Court to face the drug charges.